David G. Owen, Bending Nature, Bending Law

62 Fla. L. Rev. 569 (2010) | | | |

INTRODUCTION :: Human relationships with one another are extraordinarily complex, yet that complexity pales in comparison to their relationships with nature. Carbon, air, water, sunlight, and various organic nutrients provide us with the essential stuff of life. Yet lightning, floods, volcanoes, earthquakes, tornadoes, tigers, viruses, and other natural phenomena can snuff out human life in the twinkling of an eye. Advances in civilization over the millennia are largely a result of men and women putting science (understanding nature) and technology (applying nature) to work, of bending nature to serve human will. Just as fire, water, and other natural elements on the planet produce suffering as well as succor to human beings, so too do the fruits of science and technology. While facilitating the hunt for food, spears and gunpowder are also used to injure and subjugate other persons. Even the wheel, which so greatly expands our ability to gather resources, also extends our capacity for destruction when attached to chariots and tanks. A list of how technology has been put to use to advance the human race, while also causing it great hardship, could fill ten thousand volumes.

Over the last two centuries, explosive advances in science and technology have propelled production of a dizzying array of new tools reducing work, expanding human potential, and enriching lives in myriad ways. Developments in lamps, medicines, mechanical engines, railroads, gas and then electric lights, radios, televisions, and cell phones represent just a small sampling of the profusion of technological enhancements to human life. Today, persons to a large extent accomplish their individual and collective objectives, and relate to one another, through the products of science and technology-such as automobiles, punch presses, drain cleaners, tractors, airplanes (civilian and military), prescription drugs, medical devices, computers, frozen foods, tennis rackets, and perfumes. Yet, sometimes, such products cause collateral damage, injuring and killing human beings.

It is the job of law, drawing from customs, morals, and practical politics, to prescribe who bears the economic risk of harmful consequences from bending nature- those who exploit it or those who are harmed thereby. Early law had simple rules of strict (if limited) accountability for harm from human enterprise. Over the last couple of centuries, the law has bent that early notion, reshaping doctrine with principles of foreseeability and fault in order to shelter actors from excessive responsibility for harm from putting nature to productive use. As enterprises have harvested science and technology, foisting new and sometimes unknown risks on human beings, the concept of unforeseeability has served to protect firms from legal responsibility for harmful consequences beyond those they reasonably should anticipate. Fault itself, of course, grounds this limitation on responsibility for harm in basic moral theory. Yet, foreseeability is a more elemental concept that swirls throughout fault and other aspects of private law, assuring that accountability for the harmful consequences of behavior is rooted in human will.

Scholars of private law have long framed the central issue of responsibility for harm, whether generally or as applied to science and technology, in terms of the great divide between fault and strict liability. No doubt the comparative merits and frailties of these opposing systems of accountability are fundamentally important. Yet, the spotlight shone on economic and philosophic aspects of these competing ideologies has left in the shadows the analytic fulcrum that properly defines the outer bounds of responsibility for harm from technology gone awry. That fulcrum is foreseeability.

This Article begins to fill that gap, by illuminating foreseeability’s sometimes hidden role over the last half century in framing the debate on whether private law should hold actors accountable for the harmful effects of new technology, even if those consequences are unforeseen. This Article also opens debate on how a role for foreseeability might be fashioned for this context where consequences become ever harder to predict as science peels back the essential building blocks of nature, and as technology reconstructs nature in uncharted ways. The issue explored here is one that private law increasingly will confront: whether actors (usually firms) should bear, or be protected from, legal responsibility for the unforeseeable risks of bending nature. Put otherwise, the question addressed here is whether and how the law should bend itself to address accountability for harm in this brave new world.

Penetrating to the heart of responsibility for harm, the problem of unforeseeable risk forces courts and policy makers to reexamine the goals of private law, including a host of fundamental questions: Who should bear the costs and benefits of changes in science and technology that develop over time? How should the law deal with changes in public attitudes toward risk, producer liability, individual responsibility, and legal doctrine? Are jurors of varying ages capable of fairly judging products made before they were born, or made just last year, according to the science, technology, values, and standards of the time when those products were invented, made, and sold? Is the judicial system capable of resolving these problems in a principled manner through the development of common law, or is the legislature a preferable forum for drawing basic liability lines? Should the law place primary (or exclusive) jurisdiction in regulatory agencies to try to discover and prevent these types of hazards before the fact? These are just a few of the many perplexing questions with which courts and policymaking institutions increasingly will have to grapple, questions that lie on the cutting edge of modern science and the law. The purpose of this Article is to begin that journey.

Part II of this Article probes the underlying problem: how the accelerating pace of science is opening up a vast universe of unknown risks. Part III examines private law’s initial, blunt efforts to address the consequences of technology twisting nature into harm. This Part chronicles the law’s experiment, beginning in the 1960s, in holding producers “strictly” liable for unforeseeable risks from the products of technology, an experiment that expelled foreseeability from its classic anchoring role in private law. Part IV then explains how the law began to heal itself by reviving foreseeability, as various features of the great strict liability experiment unraveled, one by one. Part V next explores how foreseeability presents the greatest challenge to private law in a modern world where science and technology can be expected to go awry in many ways that cannot specifically be predicted, but where unexpected consequences, sometimes harmful, are inevitable. The Article concludes that the moral power and flexibility of foreseeability render it superior to a rule of strict liability in setting the boundaries of responsibility for harm from rapid advances in science and technology.

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